Joint Legislative Environment Committees Take Up Sandy Response Agenda

An Open Letter to Christie Loyalist Senator Beck

Yesterday, there was an unusual joint meeting of the NJ Senate and Assembly Environment Committees to consider a package of 8 bills regarding Sandy recovery, and to solicit public testimony on other needed legislative efforts.

See the legislative agenda here and listen to the testimony here.

That intervention is an important positive signal that Sandy reform legislative initiatives will be coming out of the environment committees, and not exclusively the Senate Budget & Appropriations Committee oversight process.

I encourage readers to listen to the testimony of former DEP Commissioner Mark Mauriello, he was the first to testify and did a superb job. Tim Dillingham of ALS also did a good job [as did NY/NJ Baykeeper!]

Press reports on this important hearing follow the familiar disappointing pattern –

First, it is hard to believe that the Star Ledger reporter was at the same hearing I was, with a story that focused on just one beach maintenance bill, perhaps the least significant issue raised all day.

The Asbury Park Press also ran with that beach story, but at least posted a broader capital quickie.

NJ Spotlight did their typical nice job.

[Update: press better than initially thought. AP story is good, as is Newsworks. and Sarah Watson of the Press Of Atlantic City did the best job – h/t Jeff T.]

It seems like anything that is policy oriented or remotely critical of Gov. Christie’s handling of the issue is perceived as “esoteric”, “partisan sniping” or simply blacked out of NJ news coverage.

So, let’s get back to the hearing.

After being denied the opportunity to testify during the Senate Budget & Appropriations Committees’s series of hearings, I finally got the opportunity to testify.

Regular readers here probably have a pretty good idea what I said, but it took most folks by surprise, especially Senator Beck (R-Monmouth).

Beck has been the Administration’s point person on this set of issues, and she took strong exception to my criticism.

After I had left the microphone and was unable to respond, Beck suggested that I “haven’t taken the time to meet with Mark Ferzan or DEP Commissioner Martin”!.

So, this morning I banged out this reply to Senator Back:

Chairwoman Spencer, Chairman Smith, and Senator Beck – 

Please allow me to provide documents in support of my testimony yesterday, supplement recommendations, and, through the Chairs, respond to Senator Beck’s remarks that followed my testimony.

I) Legislative initiatives

1. Transparency and Oversight for Federal relief plans and NJ Shore Rebuild approach

The federal Sandy relief appropriation bills require that States submit plans to various federal agencies for review and approval regarding proposed uses of federal funds. President Obama’s Executive Order guides the federal response effort (see below).

It is unprecedented in NJ history for one individual – Mark Ferzan Gov.Christie’s Rebuild Czar – unilaterally to govern the administration of billions of dollars in discretionary taxpayer funds and strongly influence the exercise of investment and land use powers – in the absence of any state legislative framework, standards, policies, plans, or structured legislative and public oversight process.

The Legislative branch is responsible for setting policies and priorities for expenditure of taxpayer funds. Legislation is required to remedy these unacceptable non-transprent practices of the Rebuild Czar and broad executive branch discretion in federal appropriations.

The Legislature needs to establish a structured, transparent, and participatory framework for these critical policy and fiscal decisions.

2. The following specific amendments to CAFRA would improve current law and policy:

a) Delete the “reconstruction” exemption from permitting in Section 5 (what DEP Commissioner Mauriello described as the right to rebuild)

b) Create a new vulnerability assessment program, by establishing content requirements, schedules, and mandates that vulnerability assessments be conducted by water & sewer authorities; local governments; and DEP.

Current DEP NJPDES regulations recommend vulnerability assessments and emergency planning and preparedness at certain wastewater treatment plants. These recommendations need to be expanded in light of the Sandy experience and made mandatory and enforceable.

Similarly, DEP water supply regulations require that DEP adopt a statewide emergency plan, but these regulatory requirements have not been implemented. DEP recently denied my OPRA request for these documents in an effort to hide this deficiency.There are no requirements for local government.

NJ DEP and NJ Sea Grant developed a Guidance document and conducted a pilot program that can serve as a framework for legislative consideration, see: Coastal Community Vulnerability Assessment Protocol (CCVAP)

The Partnership for the Delaware Estuary also prepared a pilot study, see: Climate Change and the Delaware Estuary – Three Case Studies in Vulnerability Assessment and Adaptation Planning

c) create a new climate change adaptation program. For examples of what other States are doing, see Georgetown University Climate Center:

d) create a new Shore Protection Planning process, through either DEP or via a new Coastal Commission.

I’ve reviewed Senator Van Drew’s bill (S 2575) to require DEP to update the Shore Protection Master Plan. The objectives of that bill are narrowly focused on projects, not regional planning and resource protection, and therefore is not an adequate response.

II)  Supporting documents

The following documents are provided as links, so please hit the links to access the documents –

1. President Obama’s Executive Order Establishing The Hurricane Sandy Rebuild Taskforce:

2. FEMA Climate Change Adaptation Policy

3. FEMA regulations – Criteria for land management and use 

4. DEP Commissioner Mauriello.s presentation at Monmouth University event – see: A Path Forward on the Shore

5. Massachusetts policy on coastal engineering (as a last resort)

Here’s what state officials in Massachusetts’ Office of Coastal Zone Management say about sea walls and engineered “structural solutions” –

ONLY AS A LAST RESORT: Flood and Erosion Control Structures

In the past, protecting coastal shorelines often meant structural projects like seawalls, groins, rip-rap, and levees. As understanding of natural shoreline function improves, there is a growing acceptance that structural solutions frequently cause more problems than they solve, and they are often not allowed under the Massachusetts Wetlands Protection Act. Structural protective measures often:

• Are expensive.
• Are not permissible under local and state regulations.
• Cause erosion to beaches and dunes, leading to a loss of recreational and tourism resources and diminished storm damage protection.
• Aren’t permanent, in fact require costly maintenance to ensure that they continue to provide protection.
• Divert stormwater and waves onto other properties.
• Adversely affect other properties by starving beaches of needed sediment sources.
• Create a false sense of security.
• Disturb the land and disrupt natural water flows.

Structural protection should only be considered as a last resort, knowing that it will be an ongoing expense and may increase overall damage to land, buildings, and other structures within the natural system. Whenever structural protection is pursued, hybrid technology (such as combinations of low-profile rock, cobble berms, and vegetative planting, or combinations of marsh plantings and coconut fiber rolls) should be considered as a means of reducing the negative impacts of the structure.

6. NY CIty Department of Planning – Urban Waterfront Adaptation Strategy (attached as file)

7. Perspectives Beyond NJ

a) “New Jersey was really a giant science experiment,” he’d told me.  “New Jersey was the home of some of the first vacation spots and one of the first places to arm their beaches. Thanks to New Jersey we learned that any sort of hard stabilization—sea walls, groins, and jetties—was very damaging to the beach.  We learned that the damage occurs just by building something fixed by the beach—could be a highway, for instance. The problem of beaches is that they are eroding and always moving.  The beach tends to move toward that fixed thing and get narrower and narrower and narrower until it disappears altogether.” […] [Professor Pilkey]

b) The New York Times correctly framed the issue – just days after the storm, the Times wrote this: Costs of Shoring Up Coastal Communities –

“But even as these towns clamor for sand, scientists are warning that rising seas will make maintaining artificial beaches prohibitively expensive or simply impossible. Even some advocates of artificial beach nourishment now urge new approaches to the issue, especially in New Jersey.

The practice has long been controversial.

Opponents of beach nourishment argue that undeveloped beaches deal well with storms. Their sands shift; barrier islands may even migrate toward the mainland. But the beach itself survives, because buildings and roads do not pin it down.

By contrast, replenishment projects often wash away far sooner than expected. The critics say the best answer to coastal storms is to move people and buildings away from the water,a tactic some call strategic retreat. […]

III) Response to Senator Beck

Senator Beck took exception to my criticism and suggested I meet with Mark Ferzan and DEP Commissioner Martin to get a better understanding of the Administration’s policies.

Senator Beck and others may be meeting with Mr. Ferzan and Commissioner Martin, but those are private meetings.

Like millions of NJ residents, I have no idea what “programs are being rolled out” and the plans and frameworks under consideration by the Administration.

I spoke briefly with Mr. Ferzan on February 5, 2013, just prior to the Governor’s press conference in Union Beach, and raised concerns about lack of transparency and a public planning process.

I’ve written DEP Commissioner Martin several times, he simply does not even reply. DEP political appointees on his management team hand pick and invite all DEP stakeholders – I am persona non-grata at DEP.

But more importantly, private behind closed door meetings are totally inappropriate response to the current challenges.

You suggest that the Administration and local officials are well intentioned, and should be trusted.

I took my 6th grade civics textbooks seriously when they said that we are a government of laws, not men.

Accordingly, there are minimum content requirements that define a government initiative, including authorizing law, implementing enforceable regulations, public funding, professional staffing, and a transparent and participatory public process.

The Administration’s Sandy response does not meet these minimum content requirements and therefore can not be described as a real program.

I sensed some concern on your part with motivations.

I was testifying as a non-partisan policy analyst, regulatory expert, and critic, not a lobbyist. My ethic is to advocate the strongest position I can credibly defend based on science, law, and public policy principles. I take this role seriously and almost always source all factual claims based on published documents or expert government sources.

The Senator needs to understand some relevant aspects of my professional history. I don’t play partisan games.

I joined DEP in 1985, through the civil service, under Republican Gov. Kean.

Former Senate Environment Committee Chair, Republican Hank McNamara, appointed me to the Legislative Taskforce that drafted the 1997 Brownfields law.

I worked closely with former Republican Senator Bennett in drafting the 1997 Watershed Management Act.

Former Republican Gov. Whitman’s DEP Commissioner Shinn, appointed me to numerous DEP regulatory stakeholder groups.

At his request, I met and briefed your colleague Declan O’Scanlon when he was a Republican candidate for Assembly. Similarly, at your request, I met and briefed you on the Clean Water Act TMDL program and Barnegat Bay.

I’ve criticized the policies of numerous Democrats, including Gov. Corzine, Senate President Sweeney, and current Chairman Smith – and DEP Commissioners Campbelll, Jackson, and Mauriello.

I worked closely with Senator Smith and OLS in drafting S1, the introduced version of the Highlands Act.

In my testimony yesterday, I cited 4 examples of evidence where the current Administration is moving in the wrong direction. I stand by all that. Here is the text of those documents:

1.  Blue acres acquisition policy

(see budget language)

2. Coastal Hazard Assessment (federal CZM Section 309 Report)

The Christie DEP deleted all the climate change related findings from the Section 309 Coastal Hazard Assessment Report. The DEP downgraded the priority of coastal hazards in that 309 Report from “high” to “moderate”. Just as NJ faced Irene and Sandy, DEP was downplaying the priority for coastal storm risks.

Here is DEP’s 309 Coastal Hazard Assessment Reports (2011-2015 version).

Prior Reports have long explicitly recognized  that “strategic retreat” policy option- a finding and a policy that has changed under Gov. Christie – the most recent 309 Report excluded the “strategic retreat” concept. Here are the prior DEP findings from the 2006 Report that have been eliminated:

Many parts of New Jersey’s densely populated coastal area are highly susceptible to the effects of the following coastal hazards: flooding, storm surge, episodic erosion, chronic erosion, sea level rise, and extra-tropical storms. Reconstruction of residential development and the conversion of single family dwellings into multi-unit dwellings continues in hazardous areas… the value of property at risk is increasing significantly. With anticipated accelerating sea level rise and increasing storm frequency and intensity, vulnerability to the risks of coastal hazards will not abate; it will only become more costly.

Development in areas suited to the inland migration of coastal wetlands serves to preclude this adaptation and the wetlands will either diminish in extent or will be lost to inundation. 

All of the impediments to meeting this 309 programmatic objective that appeared in the last New Jersey Coastal Zone Section 309 Assessment and Strategy remain. These include lobbying efforts of special interest groups, legal challenges to DEP permit decisions, provision of flood insurance through the National Flood Insurance Program, and public perception that large-scale beach nourishment projects eliminate vulnerability to coastal hazards.

Titus demonstrates (link) that in certain instances, structural engineering solutions will not be practical or economically feasible. In these cases future public and private development and redevelopment must be directed away from the hazardous areas. While some derogatorily refer to this option as “retreat,” from the perspective of sound planning based on the best available science, the concept actually involves “strategic adjustment.” Prudent planning requires that we expand upon the existing studies of the societal, economic, and environmental costs of possible mitigative actions while the greatest number of alternatives exist.

[Read full 2006 DEP 309 Report]

3. Outsourced adaptation planning

According to a review of the NJ DEP Office of Sustainability and Green Energy, DEP has abdicated state responsibility, delegated to the local level, and outsourced adaptation planning to a corporate dominated group called “Sustainable NJ” (e.g. check their website for membership)

DEP says this:

Adaptation

Despite our best efforts to reduce the greenhouse gas emissions that cause climate change, there will be permanent public health, ecological and economic impacts in New Jersey from those emissions already in the atmosphere. Scientists predict that in the coming years New Jersey will experience higher temperatures during the summer months that will result in an increase of heat-related illnesses, as well as poor air quality and short-term droughts; and more intense rain events, leaving residents susceptible to high flooding. These intense rain events will also worsen the impacts of rising sea level in New Jersey’s coastal and bayshore communities. …[Note: this is exactly why damaged the bridge and pipeline that collapsed. DEP also forgot to mention that record heat increases water demand.]

In particular, local governments, as the agents on the “front lines” during natural disasters, and as those with influence over planning and zoning decisions, need to be aware of their vulnerabilities and risks, as well as what actions they can take and where they need additional support.  The Department has partnered with Sustainable Jersey to form a Climate Adaptation Task Force (CATF), which is working to determine how best to support local efforts to become resilient in the face of changing climate.  The CATF released two educational tools to help local governments understand what climate adaptation is and how it will effect them.  One tool is a glossary of climate-related terminology.  The other tool is a New Jersey-specific climate trends and projections document. The CATF is now working to develop other risk assessment tools to support local government adaptive thinking.  For more information on the CATF, visit Sustainable Jersey’s website.

4. Gov. Christie Refused to acknowledge climate change

““I have no idea. I’m not a climatologist and in the last hundred days I have to tell you the truth, I’ve been focused on a lot of things, the cause of this is not one of them that I’ve focused on,” Christie said in response to a question about the role climate change could have played in fueling the Oct. 29, 2012 storm. “Now, maybe in the subsequent months and years, after I get done with trying to rebuild the state and put people back in their homes, I will have the opportunity to ponder theesoteric question of the cause of this storm. …If you asked of these people in Union Beach, I don’t think they give a damn.” NJ Gov. Chris Christie, Feb. 5. 2013

5. NJ Only Northeast State without a climate change adaptation plan

According to Georgetown University Climate Center, NJ is the only northeastern state without a climate change adaptation plan – a serious deficiency noted in a recent federal Advisory Committee Report:

Of the 12 states in the Northeast, 11 have developed adaptation plans for several sectors and have released, or plan to release, statewide adaptation plans (Georgetown Climate Center 2012). 

I appreciate your consideration and am available to clarify any of the above.

Bill Wolfe